We are unable to see any valid objection to the remarks of the solicitor to the jury, when replying to the plea of former acquittal of the higher degree of the crime charged. .It was well for the jury to have such an explanation made to them; and whilst it would probably have been better for the court to have made it, there was no legal wrong in permitting the solicitor to do so.
The deceased was shot in the back, in the region of the kidneys, with a shot gun, inflicting a wound, with an orifice of about three inches, and which, the physician said, shot the left kidney literally to pieces. He was shot at night, and died the afternoon of the next day. *16While lying on the ground, in a helpless condition, suffering pain, he repeatedly declared that he would die— that he could not get well — though, at the same time, he asked that a doctor be sent for. Not long after making these declarations he declared that the defendant shot him. The predicate for the admission of the latter is objected to as insufficient to show the existence, in the mind of deceased, of a sense of impending death ; and the objection is based upon the fact that deceased, while declaring that he would die, yet desired that a physician be sent for. We think there is no force in the objection. We may well conceive how a person, in the condition deceased was, who realized his condition and believed he was going to die, might yet desire the presence of .a physician to relieve his sufferings.
There was no error in the instruction that, “Murder in the second degree is the unlawful killing of a human being with malice aforethought, but without deliberation and premeditation.’’ — Code, § 3725; Ward v. State, 96 Ala. 300, and cases there cited. No deliberation or premeditation is required to characterize murder in the second degree, beyond that necessarily involved in the existence of malice. Such is the meaning of the instruction .
The court said to the jury : “I will define to you murder in the first degree, in order that you may better understand the meaning of murder in the second degree, but I instruct you that, under the pleadings in this case this defendant is not on trial for murder in the first degree ; but I simply define murder in the first degree in order that you may clearly and distinctly understand and comprehend the definition I will give you of murder in the 1st [?] degree and manslaughter.” The court then defined to the jury murder in the first degree. Evidently the word, “1st”, in the above quoted statement, to which we have annexed the interrogation point, is a clerical.misprison, and we will so treat it. It should have read, “second.” If this definition to the jury of murder in the first degree be regarded as abstract, the proposition of law it affirmed was correct, and -we are unable to see, with the explanation the court gave, how it could possibly have misled the jury, to the prejudice of the defendant. It was no doubt true, as the court thought, that the jury could better comprehend the quah ' ' *17ities of murder in the second degree when given to them, by having a clear understanding of the qualities of murder in the first degree. The instruction containing no error of law, and having no tendency to mislead the jury to the prejudice of the defendant, it can not afford ground of reversal.
If the essentials of self-defense were held correctly set forth in charge D, requested by defendant, théy are prefaced by the statement that, “If the jury are reasonably satisfied from the evidence that Ab. Chambers with another thi’eatened to take the life of defendant, and these threats were communicated to the defendant, and that just before and at the time of the fatal rencounter the deceased was making an attempt to carry out these threats, and had theretofore, and at the time of the fatal rencounter the deceased sought the conflict, then the defendant may act on these threats and the other evidence in the case.” This language was calcula ted to mislead the jury into the belief that, as a matter of law, the defendant had the right to shoot the deceased, if the latter had threatened to take his life, of which he had been informed, and if just before and at the time of the fatal rencounter the deceased was making an attempt to carry out the threats, and at and before that time, sought the conflict; and we are of opinion that this misleading tendency was not obviated by following up the statement with a correct enunciation of the principles of self-defense. But, the charge was also well refused for the reason that, in reference to freedom from fault on the part of defendant, in bringing on the difficulty, it required only that he should be reasonably free from fault. The law admits of no qualification of this requirement. The defendant must have been free from all fault, or wrong doing, on his part, which had the effect to provoke or bring on the difficulty. The charge was properly refused.
Charges 4 and 6 requested by defendant were argumentative and invaded the province of'the jury, and were properly refused.— Ward v. State, 78 Ala. 441.
The other exceptions are not specially insisted on in the argument of counsel. We have carefully examined them and find none well taken. There is no error, in the record.
Affirmed.